· 2 min read · Comment

Employment tribunals – what does a win actually look like?

Published:

I listened with interest to a BBC Radio 4 programme hosted by Evan Davis on employment tribunals as part of the excellent series called The Bottom Line. For all those who are or may be involved in employment disputes, it highlighted some important issues and offers some clear takeaway messages.

The initial focus was on what ends up as an employment dispute and who tends to win.

Participating was a lawyer who tended to act for employers, a lawyer who most of the time represented employees and a specialist HR practitioner.

What rapidly emerged from the debate was a clear consensus that if a case goes all the way to a full trial before the tribunal you rarely find there is a winner.


Employment tribunals at breaking point

Flexible working tribunal claims rise sharply

Long covid recognised as disability in landmark tribunal


Paraphrasing a little, there is the loser, and then there is the ostensible winner, at least in legal terms who doesn’t in reality win in all respects, and may in fact, to some extent have also lost.

This very much concurs with my long standing experience of tribunal cases – not all decisions provide the emphatic result the parties were after; the stress, time and effort cases involve, not to mention their cost, is not to be underestimated and in some cases collateral reputational damage can be an unwanted consequence too.

The discussion then moved on to the alternatives. Chief amongst those were Acas conciliation and judicial mediation.

Both these alternatives have huge potential advantages but still, for whatever reason, seem to be underused. In my opinion their potential upsides should be talked about much more than they currently are.

We see from the Acas 2020-2021 Annual Report that 264,000 people accessed the Acas individual dispute resolution service (compared to 170,000 in the previous year), of which only 7% ended up at an employment tribunal hearing.

That is, by any measure, a pretty good outcome ratio. It will be interesting to see the figures for 2021-2022, which are expected to be published shortly.

Judicial mediation first came in as a pilot study in 2006 and is now available throughout England and Wales.

It is a process that involves bringing the parties together for a mediation at a private preliminary hearing before a trained employment judge who remains neutral and tries to assist the parties in resolving their disputes. 

There is no actual loss to the parties (save for any legal expenses incurred with their lawyers) – for unlike private (commercial) mediation, the judicial mediator comes entirely free of charge (at the point of use). 

Largely but not entirely on account of the pandemic, the current delays in having cases heard before a tribunal is quite extraordinary. So surely it must make sense to give mediation a chance whenever it can sensibly be brokered.

There are always some cases that never settle for particular reasons, but they are comparatively rare in my experience. 

For me Evan Davis’ debate provided an obvious conclusion. When an employment dispute arises, and for whatever reason it cannot be sorted out in the workplace, the aim must be to explore carefully the possibilities of bringing about resolution via the alternative ways described above.

And further within the HR and employment law worlds arguably we should be seeing much more focus on the skills required and the best tactics to employ in order to bring about such resolution rather than letting so many cases get to tribunal at such significant cost in terms of time and money – to the claimant, the employer and also the public purse.

 

Richard Fox is senior counsel in the employment team at Kingsley Napley